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2003

Physician-Assisted Suicide and Federalism Physician-Assisted Suicide and Federalism

Brian H. Bix University of Minnesota Law School, bixxx002@umn.edu

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Recommended Citation Recommended Citation Brian H. Bix, Physician-Assisted Suicide and Federalism, 17 NOTRE DAME J.L. ETHICS & PUB. POL'Y 53 (2003), available at https://scholarship.law.umn.edu/faculty_articles/315.

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PHYSICIAN-ASSISTED SUICIDE AND FEDERALISM

BRIAN H. BIx*

INTRODUCTION

Law is often concerned with deciding who decides. Thelegal process school of the last generation was built aroundinquiries into institutional competence and the legal profession's(purported) expertise at finding the right procedures for eachtype of decision.' Within the American political system, the ques-tion of who decides is also often quite prominent: at what levelthe decision should be made (individual, municipal, state, or fed-eral), and by what sort of institution (individual, family, adminis-trative agency, court, or legislature).

This focus on the process of decision, to the point where pro-cess almost seems to be more important than outcome, is alsopresent, though in a different form, in the area of medical deci-sion-making. With controversial medical treatment decisions-for example, "right to die" decisions, medical treatment deci-sions for severely handicapped infants, and decisions for thelegally incompetent-a focus on adding required proceduresand decision-makers may be a way of dealing with our own con-flicting views about whom to trust and whom not to trust (some-times we prefer distance and objectivity, sometime closeness andconnection) .2

The question of who decides is the focus of discussions offederalism. The United States is a federal republic, with powersand responsibilities divided between the federal government andthe states. This federalist system has consequences for the wayissues are considered in this country, and physician-assisted sui-cide is no exception. This article will situate the problem of phy-

* Frederick W. Thomas Professor of Law and Philosophy, University of

Minnesota. I am grateful to Stephen R. Latham and Marc Spindelman for theircomments and suggestions.

1. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASICPROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. &

Philip P. Frickey eds., 1994). For a more recent analysis, see, for example, NEILK. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAw, ECO-NOMICS, AND PUBLIC POLICY (2000).

2. The best discussion of these issues is still Martha Minow, Beyond StateIntervention in the Family: For Baby Jane Doe, 18 U. MICH. J.L. REFORM 933 (1985),which looks at those issues in the context of medical decisions for severelyhandicapped infants.

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sician-assisted suicide within the legal and social-scienceliterature on federalism. Part I considers the interaction of deci-sion-makers within the American federal system: how the deci-sions of individual states can have extra-territorial effects, andhow such effects have been treated within American constitu-tional law and in recent federal policy debates, including thedebates over physician-assisted suicide. Part II takes a step backto look at some general theories from political science and eco-nomics regarding federalism, and considers the implications ofthose theories for physician-assisted suicide.

I. INTERACTIONS BETWEEN STATES AND BETWEEN STATE

GOVERNMENTS AND THE FEDERAL GOVERNMENT

The basic notion of American federalism is that decisionsare divided between the central, national government and theindividual states.3 Additionally, within the states, power is fre-quently devolved further to municipalities and other entities;however, for present purposes, the article will focus almost exclu-sively on the choice between federal and state regulation. In thepractice of American federalism, various themes have emerged:in particular, the idea of states as experimental laboratories; andthe tension between state autonomy, national citizenship, andfederal governmental initiatives.

A. States as Laboratories

Justice Louis Brandeis famously described the value of feder-alism in terms of how the states can try out new programs andapproaches-the states as "laboratories":

To say experimentation in things social and economic is agrave responsibility. Denial of the right to experiment maybe fraught with serious consequences to the Nation. It isone of the happy incidents of the federal system that a sin-gle courageous State may, if its citizens choose, serve as a

3. While those within the American political tradition usually speak of"federalism," the notion of "subsidiarity" within the European tradition is simi-lar. For example, the Treaty Establishing the European Community states: "Inareas which do not fall within its exclusive competence, the Community shalltake action, in accordance with the principle of subsidiarity, only if and insofaras the objectives of the proposed action cannot be sufficiently achieved by theMember States and can therefore, by reason of the scale or effects of the pro-posed action, be better achieved by the Community." CONSOLIDATED VERSIONOF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Article 5 (ex Article3b), available at http://europa.eu.int/eurlex/en/treaties/dat/ec_cons-treatyen.pdf (1997) (on file with the Notre Dame Journal of Law, Ethics & Pub-lic Policy).

PHYSICIAN-ASSISTED SUICIDE AMD FEDERALISM

laboratory; and try novel social and economic experimentswithout risk to the rest of the country.4

Thus, states are generally to be encouraged to try out newapproaches to dealing with social, and even moral, problems. Atthe same time, one need not assume that experimentation isalways valuable for its own sake, any more than one shouldassume that liberty is valuable, however it might be used.5 Wemight rightly resist allowing certain states to "experiment" withslavery, torture, or involuntary euthanasia.6 One justification forfederal intervention would be the belief that certain mattersshould be beyond the scope of state choice.

The notion of using the state as experimental laboratories isalso connected with the desire of the federal courts (and, tosome extent, Congress) not to intervene on issues until the con-sequences of various approaches have become clearer throughactual practice. The United State Supreme Court decisions thatrefused to recognize a constitutional right to physician-assistedsuicide, Washington v. Glucksber-' and Vacco v. Quill,8 containednumerous references to the on-going state "experimentations"on the issue,9 indicating, perhaps, that one problem with thechallenges in those cases was that they were brought too early.

Oregon is currently the only "laboratory" in the UnitedStates experimenting with physician-assisted suicide. In the 2000Election, Maine narrowly defeated a ballot measure which wouldhave allowed physician-assisted suicide.1" Similar initiatives hadalso been defeated in Washington in 1991 and in California in

4. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,J.,dissenting).

5. See Erwin Chemerinsky, Federalism Not as Limits, But as Empowerment, 45KAN. L. REv. 1219, 1235-36 (1997). On questioning whether liberty is alwaysvaluable, regardless of its use, see James Fitzjames Stephen, Liberty, Equality, Fra-ternity, in LIBERTY, EQUALITY, FRATERNITY AND THREE BRIEF ESSAYS 135-78 (Univ.Chicago Press 1991) (1873) ("The Doctrine of Liberty in its Application toMorals"); JosEPH RAZ, THE MORALITY OF FREEDOM 1-19 (1986).

6. Of course, there are some who consider physician-assisted suicide to beequally a clear evil, on which experimentation should not be allowed.

7. 521 U.S. 702 (1997).8. 521 U.S. 793 (1997).9. See, e.g., Glucksberg, 521 U.S. at 719, 735; id. at 737 (O'Connor, J., con-

curring); id. at 738 (Stevens, J., concurring in the judgment); id. at 786-89(Souter,J., concurring in the judgment).

10. The Maine Death with Dignity Act, which seems to have been basedlargely on the Oregon law, was defeated on November 7, 2000, by a vote of332,280 to 315,031, thus a difference of only about 2.7% of all the votes cast.See Referendum Election Tabulations: November 7, 2000, reproduced at http://www.state.me.us/sos/cec/elec/2000g/genOOr-s.htm (on file with the Notre DameJournal of Law, Ethics & Public Policy).

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1993.11 Finally, the Hawaii legislature defeated a comparableproposal in 2002.12 Of course, experimentation on this issue isalso going on in other countries,' 3 and there is no reason whyAmericans should not try to learn from foreign experiences. 14

B. Extra-Territorial Effects (the Examples of Marriage,Divorce, and Welfare)

The flip-side of seeing each state as a laboratory for experi-mentation within our multi-state federal system, is to note howoften the combination of normal practices and constitutionaldoctrines can cause a single state's decisions to have nation-wideeffects.

The most famous recent example of this phenomenon camewhen first Hawaii and later Vermont threatened to recognizesame-sex marriages. In both cases, same-sex couples had chal-lenged, on the basis of state constitutional protections, decisionsnot to allow them to marry.15 The Hawaii "threat" was eventuallyforeclosed by a referendum that modified the state constitutionto authorize legislation confining marriage to opposite-sexcouples. 6 The Vermont litigation resulted in a court order thatthe state legislature either extend marriage to same-sex couples orcreate an alternative institution that would give same-sex couplesall the (state-law) benefits of marriage. The Vermont Legislaturechose the second option, creating "civil unions" for same-sexcouples.' 7

Before either state had resolved the legal challenges, thefederal government became involved in the debate. The federalintervention was based on concerns arising from the Full Faithand Credit Clause of the United States Constitution:

Full Faith and Credit shall be given in each State to thepublic Acts, Records, and judicial Proceedings by everyother State. And the Congress may by general Laws pre-

11. See Glucksberg, 521 U.S. at 716-17.12. Michele Kayal, National Briefing: Hawaii-Defeat on Assisted Suicide, N.Y.

TIMES, May 4, 2002, at A10.13. See Euthanasia Bill is Okd in Parliament, L.A. TIMES, May 17, 2002, at A4

(Belgium right-to-die bill); David Lister, Euthanasia Made Legal in Holland, TIMES

(London), Apr. 11, 2001, at 1; Marlise Simons, Dutch Becoming First Nation toLegalize Suicide, N.Y. TIMES, Nov. 29, 2000, at A3.

14. Cf Glucksberg, 521 U.S. at 734 (discussing a 1990 Dutch governmentstudy that summarized that country's experience).

15. See Baker v. Vermont, 744 A.2d 864 (Vt. 1999); Baehr v. Lewin, 852P.2d 44 (Haw. 1993).

16. Baehr v. Miike, 994 P.2d 566 (Haw. 1999) (On the basis of the refer-endum, the original court challenge was dismissed as moot.).

17. 2000 Vt. Acts & Resolves 91, § 1.

PHYSICIANASSISTED SUICIDE AND I' EDERAIJSM

scribe the Manner in which such Acts, Records and Pro-ceedings shall be proved, and the Effect thereof.' 8

The Full Faith and Credit Clause has been held to require onestate to enforce the valid divorce judgments of another state."This seemed to allow one state with, say, relatively easy standardsfor gaining access to divorce to undermine the policies of statesthat had more restrictive standards. The only thing that pre-vented the easy-divorce states from entirely undermining the poli-cies of the difficult-divorce states was the rule that states have thepower to grant divorces only if the petitioning spouse was a domi-cile of the state in question. Such a standard is one that thosemerely visiting for the weekend (or even for the summer) couldnot meet.

20

The Full Faith and Credit Clause clearly applies to divorcedecrees, because they are judgments of the court ('judicial Pro-ceedings" under the clause). It is far less clear that marriages arecovered by the clause. Marriages are not 'judicial Proceedings,"nor are they in any obvious way the "public Acts [or] Records" ofthe state. If a marriage celebrated in one state is binding inanother state under the Full Faith and Credit Clause, it isbecause of the "full faith and credit" each state must grant thelaws under which the marriage was celebrated.2 Nonetheless,many people worried that if same-sex marriages were to be validin one state, other states might be legally bound to recognizethose marriages, even if those other states had a strong publicpolicy against recognition of such marriages.2 2 This may have

18. U.S. CONST. art. IV, § 1.19. Williams v. North Carolina, 317 U.S. 287 (1942).20. See Williams v. North Carolina, 325 U.S. 226 (1945) (holding that

another jurisdiction had the right to question the jurisdictional basis of a migra-tory divorce before granting the divorce-granting state's decree full faith andcredit); see also Fink v. Fink, 346 N.E.2d 415 (I11. App. Ct. 1976) (refusing to givefull faith and credit to a Nevada divorce; holding that the husband had notobtained domiciliary status in Nevada despite his significant efforts to do so).

21. See Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitu-tional Public Policy Exception, 106 YALE L.J. 1965, 1976, 1999 (1997).There would similarly seem to be "full faith and credit" limits on other states'abilities to penalize an estate because the deceased had taken advantage of theOregon physician-assisted suicide legislation, because it is one of "the publicActs" to which full faith and credit must be given.

22. The Full Faith and Credit Clause creates federal constitutional lawthat binds the states regarding their freedom to recognize or not recognize thelaws and judgments of other states. See Baker v. Gen. Motors Corp., 522 U.S.222, 233 (1998) (declaring that there is no "roving 'public policy exception' tothe full faith and credit due judgments").However, at a different level from the constitutional strictures of the Full Faithand Credit Clause, there are the traditional principles of conflict of laws, under

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been a baseless fear, 3 but it was the basic justification for thepassage of the Defense of Marriage Act (DOMA).24 DOMAauthorized states not to recognize same-sex marriages if they sodesired,2 5 thus reducing the fear that recognition of same-sexmarriage by one state would impinge on the marriage policies ofother states.

Thus, DOMA tries to answer one problem of American fed-eralism: how can one require states to respect the laws and judg-ments of other states without simultaneously giving each state thepower potentially to undermine the policies of every other state?DOMA does this by giving each state the limited power not torecognize certain sorts of marriages entered into in other states.

However, the basic tension of American federalism inevita-bly remains: the problem of simultaneously granting significantautonomy to the individual states while maintaining a nationalidentity and rights of national citizenship. For example, whileUtah might be authorized by DOMA to prevent Vermont deci-sions on same-sex marriage from "infecting" Utah's policiesregarding whom to give the benefits of marriage, Vermont hasno reciprocal power to prevent Utah residents from moving to

which a marriage which is valid where celebrated will be recognized in otherjurisdictions. However, conflict of laws principles (unlike Full Faith and Credit,see supra Baker) recognizes an exception when the marriage "violates the strongpublic policy of another state .... " RESTATEMENT (SECOND) OF CONFLICT OF

LAws § 283(2) (1971).

23. Arguably baseless because other states would probably not be boundto recognize a marriage by the Full Faith and Credit Clause, and standard con-flict of laws principles would likely allow states to deny enforcement under a"public policy" exception. See supra text accompanying note 22.

24. Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1 U.S.C.A. § 7 (1997& Supp. 2002), 28 U.S.C.A. § 1738C (Supp. 2002)).

25. DOMA states:

No State .. .shall be required to give effect to any public act, record,or judicial proceeding of any other State ... respecting a relationshipbetween persons of the same sex that is treated as a marriage underthe laws of such other State . . . , or a right or claim arising from suchrelationship.

28 U.S.C.A. § 1738C (2002).

The constitutional status of DOMA is highly contested. Some argue that Con-gress was merely acting under the express authorization of the Full Faith andCredit Act: "And the Congress may by general Laws prescribe the Manner inwhich such Acts, Records and Proceedings shall be proved, and the Effectthereof." U.S. CONsT. art. IV, § 1. Others argue that this power granted toCongress operates only on the margins, and does not give Congress the powerto authorize states not to recognize the laws of other states. See, e.g., I LAURENCE

H. TRIBE, AMERICAN CONSTITUTIONAL LAw § 6-35, at 1247 n.49 (3d ed. 2000).

PHYSICIAN-ASSISTED SUICIDE AND FEDERALISM

Vermont to take advantage of Vermont's civil unions law.26 It ispart of constitutional federalism that states have no power todeny access of laws or benefits to someone simply because theyare new to the state. This point was reaffirmed in the 1999Supreme Court decision of Saenz v. Roe,2 7 where the Court invali-dated a California statute that limited the welfare benefits availa-ble to newly arrived residents.28 This was held to violate theconstitutional right to interstate travel.2"

At the same time, the United States Supreme Court hasallowed states to impose residence-durational requirements, atleast on some benefits offered by the states. In Sosna v. Iowa,3 °

the Court upheld Iowa's one-year residency requirement forobtaining a divorce in the Iowa courts. In upholding the resi-dency requirement, the Court stated that it

furthers the State's parallel interests both in avoiding offi-cious intermeddling in matters in which another State hasa paramount interest, and in minimizing the susceptibilityof its own divorce decrees to collateral attack. A State suchas Iowa may quite reasonably decide that it does not wishto become a divorce mill for unhappy spouses .... 31

Thus, the Supreme Court has expressly affirmed as legitimate astate's interest in not becoming a magnet to out-of-state citizens,based on the services or benefits it offers.32

26. With new institutional options like civil unions, the pressure is likelyto be in the opposite direction: for Vermont to use the availability of "civilunions" as an enticement for tourism and immigration from other states. See,e.g., Jennifer G. Brown, Competitive Federalism and the Legislative Incentives to Recog-nize Same-Sex Marriage, 68 S. CAL. L. REV. 745 (1995); Carey Goldberg, Gays andLesbians Head for Vermont to Make It Legal, But How Legal Is It?, N.Y. TiMES, July 23,2000, at 12 (reporting that "[s]ome town clerks [in Vermont] report that two-thirds or more of the certificates they issue are to out-of-staters.").As will be discussed shortly, the states do not have the power to foreclose offeringa benefit to a new resident, but they do have the right, in most instances, to delaymaking the benefit available.

27. 526 U.S. 489 (1999).28. California has one of the most generous welfare programs in the

nation. It hoped to save money by limiting new residents during their first yearin the state to the benefits they would have received in the states of their priorresidence. Id. at 492.

29. A doctrine introduced in Shapiro v. Thompson, 394 U.S. 618 (1969);see also Zobel v. Williams, 457 U.S. 55 (1982).

30. 419 U.S. 393 (1975).31. Id. at 407.32. However, a comparable argument for welfare benefits has been twice

rejected. Saenz, 526 U.S. at 506; Shapiro v. Thompson, 394 U.S. 618 (1969).Though the Court has made the effort to treat the decisions in Shapiro, Sosna,and Saenz as consistent, it is not easy to do. Compare Saenz, 526 U.S. at 505(majority opinion), and Sosna, 419 U.S. at 405-10 (majority opinion), with

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A state might thus create a residency, or duration-of-resi-dency requirement, both to prevent unwanted travel by outsidersmerely to take advantage of an in-state benefit,3 and to lessenconcerns and hostility of other states based on the way the state'slaws and benefits might undermine the policies of other states (atheme approved by the Supreme Court in its discussion in Sosnaof Iowa's duration-of-residency requirement for divorce). Withphysician-assisted suicide, the second concern seems likely morecompelling than the first.

The Oregon statute imposes a residency requirement, thusminimizing its extraterritorial effects. No one qualifies to uselegal physician-assisted suicide who is not a "resident of Ore-gon."34 While no bright-line rule is given for determiningwhether someone is an Oregon resident,3 5 the statute points tofour factors: having an Oregon driver's license; having registeredto vote in the state; leasing or owning property in the state; andhaving filed an Oregon tax return for the most recent tax year.36

Therefore, merely traveling to Oregon for a long weekend, or anextended vacation, would be insufficient to qualify someone toseek physician-assisted suicide under the Oregon Act. One neednot fear "death tourism. 3

' However, as discussed above, there isno constraint on the ability of United States citizens to movefrom some other state to Oregon with the intention of takingadvantage of the statute once settled there as full-time residents.

There might yet be state-state policy interference in theother direction: decisions by other states that have the purposeor effect of undermining Oregon's legalization of physician-assisted suicide (federal interference with Oregon's policy will bediscussed in the next section). For example, consider the situa-tion of physicians licensed in more than one state: what if Idahosought to revoke a physician's license on the basis that this doc-

Saenz, 526 U.S. at 511-21 (Rehnquist, C.J., dissenting), and Sosna, 419 U.S. at418-27 (Marshall, J., dissenting).

33. Though there are limits on the state's power to do this, at least whenwelfare benefits are involved, as the Saenz and Shapiro decisions indicate.

34. OR. REV. STAT. 127.805 § 2.01 (2001); see also id., 127.800 § 1.01 (11)(defining "qualified patient" for the purpose of the Act as "a capable adult whois a resident of Oregon and has satisfied the requirements of [the Act]"); id.,127.860 § 3.10 ("Only requests made by Oregon residents . . . shall begranted.").

35. See id., 127.860 § 3.10 ("Factors demonstrating Oregon residencyinclude but are not limited to [the four factors listed].").

36. Id.37. Cf Fiona Fleck, Swiss Group Said to Push 'Suicide Tourism, NAT'L POST,

Aug. 26, 2002, at A14; David Lister, Death Tourism'Fear as Dutch Back Euthanasia,TIMES (London), Apr. 11, 2001, at 17.

PHYSICIAN-ASSISTED SUICIDE AND FEDERALISM

tor had participated in an assisted suicide? It is quite possiblethat the Full Faith and Credit Clause would preclude that sort ofinterference (on the basis that it would be a failure on Idaho'spart to give full faith and credit to the "public Acts" of Oregon),but that legal question is far from fully settled.

C. Federal Intervention

The federal government has already stepped in, to a limitedextent, to constrain state experimentation in the area of physi-cian-assisted suicide, and some federal officials have tried to endthe experiment entirely.

The first form of federal intervention with the Oregon legis-lation in fact came neither from the legislative branch nor fromthe executive branch, but from the judicial branch. The legisla-tion legalizing physician-assisted suicide, after being passed in aNovember 1994 referendum, was supposed to go into effect inDecember 1994. However, a federal district court enjoinedimplementation of the Act, on the basis of a lawsuit whichclaimed that the legislation violated the Equal Protection Clauseof the Fourteenth Amendment to the United States Constitu-tion.3" However, the district court decision was overturned bythe Ninth Circuit Court of Appeals, and the United StatesSupreme Court refused to hear the appeal.39

38. The preliminary injunction, and its justification, appears in Lee v.Oregon, 869 F. Supp. 1491 (D. Or. 1994). The permanent injunction appearsin Lee v. State, 891 F. Supp. 1429 (D. Or. 1995), rev'd sub nom. Lee v. Oregon,107 F.3d 1382 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997).The initial suit was brought by "two physicians, four terminally ill or potentiallyterminally ill patients, a residential care facility, and individual operators of resi-dential care facilities." Lee, 869 F. Supp. at 1493. The plaintiffs claimed that theAct violated the Equal Protection and Due Process Clauses of the FourteenthAmendment, as well as the First Amendment rights to free exercise of religionand association, and the Americans with Disabilities Act. Id. The eventualinjunction was based only on the Equal Protection claim. Id. at 1437. Thecourt stated:

[The Oregon Act] provides a means to commit suicide to a severelyoverinclusive class who may be competent, incompetent, unduly influ-enced, or abused by others. The state interest and the disparate treat-ment are not rationally related and [the Act], therefore, violates theConstitution of the United States.

Id. (footnote omitted).39. Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997), cert denied, 522 U.S. 927

(1997).The Circuit Court decision was grounded on the fact that none of the plaintiffshad the requisite standing to challenge the statute and their claims lacked"ripeness"-that is, that the plaintiffs could not claim actual harm from the Act,or any imminent harm that was more than highly speculative. Id. at 1387-92.

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The injunction against implementation of the Oregon legis-lation had been lifted on October 27, 1997, and in November ofthe same year, Oregon voters rejected by a margin of 60% to40% a referendum effort to repeal the legislation.4 ° (Sixteenpatients died ingesting legally prescribed lethal medication in1998; twenty-seven in 1999; twenty-seven in 2000; and twenty-onein 2001.)41

The Federal Assisted Suicide Funding Restriction Act of1997 was a more "successful" federal intervention, prohibitingthe use of federal funds in support of physician-assisted suicide.42

More extensive and constraining federal intervention has beenintroduced, but has not (yet) been enacted. The Pain Relief Pro-motion Act was introduced in the House and the Senate in both1999 and 2000, and was in fact passed by the House in October1999 before it died in the Senate." That Act would, amongother things, have made it illegal to use a federally controlledsubstance in physician-assisted suicide (and most commentatorsviewed blocking physician-assisted suicide in Oregon as this Act'smain purpose). 44

On November 6, 2001, Attorney General John Ashcroft senta letter to the Drug Enforcement Administration, a copy ofwhich was published in the Federal Register, stating that assistingsuicide was not a "legitimate medical purpose," and therefore theuse of controlled substances to effect that purpose would violatethe Controlled Substances Act,4 5 and make a physician's licensesubject to suspension or revocation if she prescribed controlled

40. See OR. DEP'T OF HUMAN SERVS., FOURTH ANNUAL REPORT ON ORE-

GON'S DEATH WITH DIGNITY Acr 6 (2002), available at http://www.ohd.hr.state.or.us/chs/pas/Olpasrpt.pdf (on file with the Notre Dame Journal of Law, Eth-ics & Public Policy).

41. See id. at 3.

42. 42 U.S.C.A. § 14401 (Supp. 2002). The statute extends the prohibi-tion of federal funding also to euthanasia and mercy killing. Id.

43. H.R. 2260 passed the House of Representatives on October 27, 1999,by a vote of 271-156. In the Senate, it was reported favorably out of the Judici-ary Committee on May 23, 2000, but received no further attention before the106th Congress ended (legislative history available at http://thomas.loc.gov/);see alsoJim Barnett, Legislative Action on the Suicide Law is Not Expected Soon, ORE-GONIAN, Apr. 18, 2002, at Al. No new federal legislation is expected in the107th Congress.

44. In 1998, President Clinton's Attorney General, Janet Reno, had ruledthat the federal controlled substances legislation did not preclude the medicaluse of such substances, including physician-assisted suicide. Jim Barnett, BushMay Act on Assisted Suicide, OREGONIAN, Feb. 2, 2001, at A7.

45. 21 U.S.C.A. §§ 801-950 (1999 & Supp. 2002).

PHYSICIAN-ASSISTED SUICIDE AND PEDERALISM

substances for that purpose of assisting suicide.46 The State ofOregon subsequently filed a complaint in the United States Dis-trict Court for the District of Oregon, seeking declaratory andinjunctive relief from the Attorney General's Directive.47 JudgeRobert E. Jones initially granted temporary relief, and eventuallygranted a permanent injunction against enforcement of theDirective.48 The District Court grounded the injunction on theconclusion that the Attorney General's actions had exceeded hisauthority under the Controlled Substances Act.49

There is ample evidence that Oregon residents, whatevertheir positions on the issue of physician-assisted suicide, generallyhave not reacted well to the perceived federal interference withwhat is perceived to be a state matter.5 0

II. THEORIES OF FEDERALISM

Within the political science and economics literature, thereare a variety of perspectives on the values and effects of federal-ism. Those who theorize about the subject often seek ideasabout how the various levels of government should divide theirresponsibilities. Two commentators summarized the prevailingviews as follows:

[T] hose who value a federal system typically do so for somemix of three reasons: it encourages an efficient allocation ofnational resources; it fosters political participation and asense of the democratic community; and it helps to protectbasic liberties and freedoms.5 1

Beyond these theories supportive of federalism and offering pre-scriptions for its use, there are also theories, not always as support-ive, about federalism's likely effects. The subsections that followwill consider both supportive and more cynical/descriptive views

46. See Dispensing of Controlled Substances to Assist Suicide, 66 Fed.Reg. 56,607 (Nov. 9, 2001) (to be codified at 21 C.F.R. pt. 1306); State v. Ash-croft, 192 F. Supp. 2d 1077, 1078-79, 1082-84 (D. Or. 2002).

47. A physician, a pharmacist, and a number of terminally ill patientswere allowed to intervene. State v. Ashcroft, 192 F. Supp. 2d at 1084.

48. Id. at 1084-85.49. Id. at 1087-93. An appeal to the Ninth Circuit Court of Appeals is

expected. Ashbel S. Green, Suicide Law May Go to the 9th Circuit, OREGONIAN,Apr. 21, 2002, at Al.

50. See David Sarasohn, Ashcrofl Ruling Stirs the Embers in Oregon, OREGO-NtAN, Nov. 11, 2001, at BI; Sam Howe Verhovek, Oregon Chafes at Measure to StopAssisted Suicides, N.Y. TIMES, Oct. 29, 1999, at Al.

51. Robert P. Inman & Daniel L. Rubinfeld, Rethinking Federalism, 11 J.ECON. PERSP. 43, 44 (1997).

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of federalism, and will consider their possible application to theissue of physician-assisted suicide.

A. Competitive Federalism

One group of theories about federalism is "competitive fed-eralism," the view that states tend to compete with one anotherfor various objectives and benefits.52 One common version ofthis theory asserts that federalism often leads to a "race to thebottom." For example, if different governments are competingto have businesses relocate to their area, these governmentsmight end up topping one another not only for the generosity ofthe tax benefits and subsidies offered, but also for the laxness oftheir pollution, employee safety, and employee-rights regula-tions. The notion of calling such competition a "race to the bot-tom" is that the competition might lead to results (as in theexample of the ever-decreasing protections for workers and theenvironment) which were contrary to the common good.

There are other circumstances, where there might be,instead, a "race to the top,""3 where the competition was seen ascreating socially beneficial results, or at least morally neutral ben-efits for some class(es) of persons. Some have argued, for exam-ple, that there is competition among the states to create the most"efficient" rules for the regulation of commercial activities.54

While there is little evidence that Oregon's legalization ofphysician-assisted suicide should be seen as part of some compe-tition with other states to attract residents, health care provisiongenerally could easily be part of such a contest.55

52. See, e.g., THOMAS R. DYE, AMERICAN FEDERALISM: COMPETITION AMONG

GOVERNMENTS (1990).

53. See, e.g., F. H. Buckley & Margaret F. Brinig, Welfare Magnets: The Racefor the Top, 5 S. CT. ECON. REV. 141 (1997).

54. See, e.g., Roberta Romano, Empowering Investors: A Market Approach toSecurities Regulation, 107 YALE LJ. 2359, 2361 (1998) ("There is a substantialliterature... indicating that shareholders have benefitted from the federal sys-tem of corporate law by its production of corporate codes that, for the mostpart, maximize share value.").

55. As it happens, Oregon has the reputation for quite good hospice careand innovative, if sometimes controversial, ideas about the rationing of healthcare and health care insurance. (If one had either an active imagination or ahighly cynical disposition, one might also speculate that a state's provision ofend-of-life services and laws could serve as a means for the state to obtain fundsfrom estate taxes; however, for the moment at least, this seems far-fetched as acharacterization of the motivation of those supporting reform proposals.)

PHYSICIAN-ASSISTED SUICIDE AND FEDERALISM

B. Sorting and Responsiveness

An alternative theory is one of sorting-a theory that couldbe seen as connected to the idea of the states as laboratories forexperimentation, discussed earlier. Under this view of Americanfederalism, the heterogeneity of ways of life and views of thegood are more conveniently dealt with by allowing differentstates and local governments to reflect different values. WhileVermont or New York, say, might recognize same-sex unions andoffer benefits to non-married cohabitants, perhaps Utah or Loui-siana might deny benefits to same-sex and non-married couples,and try instead to create a more binding form of marriage. Simi-larly, the "libertarian-inclined" State of Oregon might have a dis-tinctively different approach to physician-assisted suicide and theright to die than might a state influenced by a large populationof devout Catholics among its citizens.5 6

Even if one does not think in terms of large value differ-ences from region to region (or from state to state), there willinevitably be noticeable demographic differences. Federalism, inparticular decentralization of decision-making, is often justifiedby such differences. "The hope is that state and local govern-ments, being closer to the people, will be more responsive to theparticular preferences of their constituencies and will be able tofind new and better ways to provide these services. 57

C. Federalism and Efficiency

Some economists have argued for an application of federal-ist principles such that the central government is involved onlywith those issues which involve significant externalities acrossgeographically wide areas (e.g., environmental issues).5 8 Beyondthe question of externalities, economic federalism would simplyinquire (perhaps unsurprisingly) as to which level of governmentcould provide the services in question most efficiently. The pre-sumptive efficiency of (more) local government under this

56. One obvious example of a state reacting to physician-assisted suicidein a way opposite to Oregon was Michigan, which responded to Dr. Jack Kevor-kian's highly publicized physician-assisted suicides by repeated prosecutionsand by express criminalization of the act. See, e.g., Valerie J. Vollmar, RecentDevelopments in Physician-Assisted Suicide-June 2002, at http://www.willamette.edu/wucl/pas/pasupdatejune2002.html (last visited Aug. 27, 2002) (on filewith the Notre Dame Journal of Law, Ethics & Public Policy).

57. Wallace E. Oates, An Essay on Fiscal Federalism, 37J. ECON. LITERATURE

1120, 1120 (1999).58. See, e.g., WALLACE E. OATES, FISCAL FEDERALISM (1972).

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model is tied to an analysis similar to the discussion of sortingand responsiveness discussed in the prior section. 59

For physician-assisted suicide-to whatever extent one mightthink it proper to think of this as a "provision of a service"-more local decision-making would seem appropriate, unless anduntil the local rules had significant spillover effects. As alreadydiscussed, as long as the state laws on physician-assisted suicidehave a residency requirement, or something comparable, thereare unlikely to be substantial spillover effects.

D. State's Rights and Sovereign Immunity

There are also legal theories of federalism, ideas about whatthe United States Constitution requires by way of the division ofpowers between the federal government and the states. TheUnited States Supreme Court has recently decided a series ofcases which have provided substantial protection for state sover-eignty and state prerogatives, as against federal power. Many ofthese cases are based directly or indirectly on the EleventhAmendment, 6 which by its text seems merely to put a small con-straint on the diversity jurisdiction of the federal courts, butwhich has been held to be a broader recognition of state sover-eign immunity.6' Parallel with the broad reading of the EleventhAmendment has been an ever-narrower reading of Congress'powers to bind the states under either the Commerce Clause6 2 orSection Five of the Fourteenth Amendment.63 Some of the lattercases have indicated that certain subjects are presumptively

59. See Truman Bewley, A Critique of Tiebout's Theory of Local Public Expendi-tures, 49 ECONOMETRIcA 713 (1981); Charles Tiebout, A Pure Theory of LocalExpenditures, 64J. POL. ECON. 416 (1956).

60. "The Judicial power of the United States shall not be construed toextend to any suit in law or equity, commenced or prosecuted against one ofthe United States by Citizens of another State, or by Citizens or Subjects of anyForeign State." U.S. CONsT. amend. XI.

61. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Hans v.Louisiana, 134 U.S. 1 (1890); see also Pennsylvania v. Union Gas Co., 491 U.S. 1,39 (1989) (Scalia, J., concurring in part and dissenting in part) (describing theEleventh Amendment as reflecting a "broad constitutional principle of sover-eign immunity").

62. See, e.g., United States v. Lopez, 514 U.S. 549 (1995).63. See, e.g., Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)

(analyzing the case primarily under Section Five); United States v. Morrison,529 U.S. 598 (2000) (discussing both the Commerce Clause and Section Five ofthe Fourteenth Amendment). Garrett seems to limit the scope of federal regula-tion authorized by Section Five to protection of oppressed groups who alreadyhave constitutional protection under the Fourteenth Amendment.

PHYSICIAN-ASSISTED SUICIDE AND I EDERALSM

beyond Congress' power to regulate: non-economic regulation,especially if it concerns the family.64

There may well be no connection between this line of casesand the issue of physician-assisted suicide, but it is just possible,depending on the nature and wording of the federal regulationin question, that this Supreme Court might invalidate a federallaw which interfered with the state regulation of medical prac-tices-though it is more likely that such federal regulation wouldbe upheld. Regulations which do not impose liability on thestates themselves, and do not "commandeer" state governmentsto do the bidding of the federal government,6" are usuallyupheld.

E. Application to Physician-Assisted Suicide

Both the Oregon law and most other recent proposals66

impose a residency requirement on those who would take advan-tage of the legalization of physician-assisted suicide. That aloneshould be sufficient to mollify most concerns about one state'slaws undermining the policies of other states, or about therebeing a ghoulish "race to the bottom" for the medical-suicide"tourist trade." Here, it is interesting to contrast the likely effectsof two different controversial state health legalizations-physi-cian-assisted suicide and medical marijuana67 _and perhaps addin the non-medical example of same-sex marriage. Thoughsome commentators had suggested that there might be a strongfinancial incentive for states to enact same-sex marriage in orderto gain the tourism dollars from those who would take advantage

64. See Morrison, 529 U.S. at 599 (regulation of domestic relations); Lopez,514 U.S. at 549 (criminal law matter without obvious interstate elements oreffects).

65. See, e.g., New York v. United States, 505 U.S. 144 (1992) (invalidatingthe Low-Level Radioactive Waste Policy Amendments Act of 1985, on the basisthat it would either require states to implement federal regulations or to acceptownership of radioactive waste).

66. See, e.g., supra note 10 and accompanying text.67. As of February 2001, nine states had laws that protected medicinal

marijuana users from state prosecutions. Tom Mashberg, Debate Swirls OverMarijuana as Medicine, B. HERALD, Feb. 25, 2001, at Al. However, in May 2001the Supreme Court decided that there was no "medical necessity" exception tothe federal statutory prohibition on the manufacture and distribution of mari-juana. United States v. Oakland Cannabis Buyers' Coop., 523 U.S. 483 (2001).Given federal law supremacy, the states are powerless to legalize marijuanafully; full legalization will require a change in the federal law (just as a federallaw banning physician-assisted suicide would trump state actions attempting tomake assisted suicide legal).

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of such laws,6" there has in fact been no rush to that "top" or"bottom," because the proposal is sufficiently controversial thatthere will inevitably be serious resistance to the proposal,whatever the financial (or other) incentives might be for passage.Similarly, for physician-assisted suicide and medical marijuana:whatever incentives there might be for passage, the proposalsinevitably evoke sufficiently strong ideological opposition thatthe marginal financial (or other) incentives are unlikely to causequick passage-contrast rules like those regarding corporate gov-ernance or securities regulation, where those favoring business-friendly rules are likely to be well-organized and have a strongfinancial incentive in passage, while opponents are unlikely to beeither strongly organized or strongly motivated.

Consider also one response to physician-assisted suicide: thefederal legislation that prohibited the use of federal funds forphysician-assisted suicide.6 9 How that decision comports withfederalist principles depends on one's views on at least two issues.First, does one consider physician-assisted suicide to be anacceptable option for individuals to use and states to authorize?Those who do not think so would not be inclined to think ofphysician-assisted suicide as a matter on which states should beallowed, or encouraged, to "experiment," and therefore, federalintervention to discourage or prohibit physician-assisted suicidewould be appropriate.

Second, even assuming that physician-assisted suicide is anappropriate matter for state choice, 70 what is the baseline againstwhich federal funding decisions are to be evaluated? If one con-siders the baseline to be "no funding," then a decision not tooffer federal funds to physician-assisted suicides in Oregon seemsentirely acceptable. This is an experiment of that state, and torequire the citizens of other states, including states whose citi-zens sharply disagree with the practice, to subsidize Oregon'sexperiment, seems contrary to the whole notion of "the states as

68. See, e.g., Brown, supra note 26; Tammerlin Drummond, The ManyingKind, TIME, May 14, 2001, at 52 (indicating that 80% of the civil union licensesissued to date have been to out-of-state residents, and that civil unions havecontributed to Vermont's tourism industry).

69. See supra note 42 and accompanying text.70. As discussed earlier, supra notes 5-6 and accompanying text, there is

a sense in which state "autonomy" to experiment under federalism could beanalogized to the autonomy given to individuals under some form ofJohn Stu-art Mill's "harm principle" (state criminalization is appropriate only where indi-vidual actions harm other people). While the analogy may be suggestive, it alsohas limitations: the constraints on state "autonomy" would likely be individualrights, moral principles, and the social good, not some general notion of "harmto other states."

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laboratories." Each state, as experimenter, should make its owndecisions and live with the costs and benefits of those decisions.

On the other hand, if the federal decision to block funds isseen against a baseline of general funding for medical proce-dures, then the federal decision is less a matter of a "failure tosubsidize," fully justified under federalist principles, and more amatter of the federal government trying to undermnine the practice.The inverse of the prior analysis then applies: just as experi-menting states have no right to be subsidized by (the citizens of)other states, so they have a right not to be undermined by thefederal government, representing the citizens of other states.There is no easy or obvious conclusion regarding the properbaseline for this analysis,7" and the analysis raises conceptual,moral, and political questions far beyond the scope of this piece.

CONCLUSION

Under federalist principles, which prescribe the separationof political decision-making among different levels of govern-ment, it seems natural that some states might choose to legalizephysician-assisted suicide, because it reflects the values of the citi-zens of those states. Additionally, it is beneficial that there besuch "experiments" going on, as long as the spillover effects ofthe experiment can be minimized. At the moment, Oregon isthe only such experiment in the United States, but it may be asufficient "laboratory" for ascertaining the likely long-term effectsof legalization.

71. A similar question is obviously raised by federal funding of abortions.See, e.g., Harris v. McRae, 448 U.S. 297 (1980) (upholding from constitutionalchallenge the Hyde Amendment, which withheld Medicaid funding fromalmost all abortions); Michael J. Perry, My the Supreme Court Was Plainly Wrongin the Hyde Anendment Case: A Brief Comment on Harris v. McRae, 32 STAN. L. Rsv.1113 (1980).

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